7:27 9/6/2023.

Caption

John doe v carroll county election board et al.

Motion for partial summary judgment

Draft only do not file.

Comes now plaintiff by counsel and for their motion for partial summary judgment states as follows.

Plaintiff has filed their complaint, claiming that Indiana’s political sign disclaimer statute, IC 3-9-3.2.5, and the county’s policies, violate the state and federal constitutions. The county has answered, generally denying everything and raising affirmative defenses.

Summary judgment is appropriate when the questions are solely matters of law. The parties agree on the material facts as relevant here.

It is a basic maxim of law that federal constitutional issues should be avoided when a decision can be reached as a matter of state law. This is true here, even though there is substantial overlap between the state and federal claims; both involve similar claims of free speech, free press, privacy, association, and the right to free and open elections.

A decision on the state law issues will help to narrow the dispute and perhaps lead to the case being resolved without having to proceed to fully litigate the federal issues.

Plaintiff claims, in count 1, that the statute violates the first clause of article 1 section 9, in count 2 that it violates the second clause of article I section 9, in count 3 that the violates article 1 as a whole, including sections 1,2,9,11,12, and 31, and in count 4 that it violates article 2 section 1, the right to free and equal elections.

Factors which aid in interpreting the Indiana constitution include the text, history, case law, analogous federal case law, and decisions from other states.

This filing will follow that format, arguing that the text, case law, analogous federal case law, and decisions based on other state constitutions each supports finding for plaintiffs.

The text of count 1 has a plain meaning, to which this court can give affect, by finding that Plaintiff’s proposed signs, such as “Vote for Smith” are speech protected by the first clause of section 9. It seems to be a case of first impression as to whether the first clause is an independent source of law distinct from the second clause.

  Clause 1 No law shall be passed, restraining the free interchange of thought and opinion

 Clause 2 or restricting the right to speak, write, or print,

freely, on any subject whatever:

clause 3. but for the abuse of that right, every person shall be responsible.

In Price v Indiana, 1993, the leading case on section 9, the court did not opt for a plain meaning,  but made two variations on the plain meaning of the text. First, it found that the abuse clause modifies both the first and second clauses, and second, it gave heightened protection to political speech, a distinction not present in the text.

The speech here, such as “Vote for Smith”,  is undeniably political. Under Price, it receives strict scrutiny. There is no compelling state interest in criminalizing political speech about elections. Doing so would undermine the integrity of the election process. Perhaps the legislators would like to know who is speaking against or for them, but this does not amount to a compelling state interest.

Two additional state cases shed some light on the issue. In re Ind. Newspapers, Inc., No. 49A02-1103-PL-23, ___ N.E.2d ___ (Ind. Ct. App., Feb. 21, 2012). Majors v Abell (Ind 2003) construed section 2-3-9-2.5, on a certified question from the 7^th circuit. Majors declined to address questions of state constitutional law, and did not express any opinions about its federal constitutionality, because that was not the question before it. The sole issue was whether 3-9-3-2.5 affects everyone, or whether it is limited to candidates and committees. The court found that it affects everyone. This was relevant to whether Majors had standing and a justiciable controversy.  Majors has little to say about whether the statute violates either constitution, but is mentioned here as the leading state law authority on the statute.

In re Indiana newspapers Inc. a case of first impression on the right to anonymous speech under the Indiana constitution, applied a modified Dendrite standard to the discovery of the identity of a commented at the Indianapolis star’s website. This requires a libel plaintiff to make a prima facie case before engaging in discovery.

Anonymous speech has played an important role in the history of this country. “Under our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy or of dissent.” McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 356 (1995). This First Amendment protection has been extended to material on the internet as well. Reno v. Am. Civil Liberties Union, 521 U.S. 844, 870 (1997) (“[O]ur cases provide no basis for qualifying the level of First Amendment scrutiny that should be applied to [the internet].”)

Dendrite International, Inc. v. Doe No. 3, 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001). Doe v. Cahill, 884 A.2d 451 (Del. 2005).

We recognize that the Indiana Constitution “‘more jealously protects freedom of speech guarantees than does the United States Constitution.’” Mishler v. MAC Sys., Inc., 771 N.E.2d 92, 97 (Ind. Ct. App. 2002) (quoting Lach v. Lake Cnty., 621 N.E.2d 357, 362 n.1 (Ind. Ct. App. 1993), trans. denied). 

 

 

 

Because the speech here is political, this case is not a vehicle for questioning whether Price was correct in giving heightened protection to only some speech; that is an issue for another day. Price was a disorderly conduct case, and has primarily been cited in other disorderly conduct cases. It has not become a broad landmark as predicted in “A Second Wind for the Indiana Bill of Rights.” This filing, and this case, is an attempt at following up on Price as establishing general principles of Indiana constitutional law which limit the power of the legislature to criminalize signs which urge people to vote for or against them.

[Under Price, section 9 .. 8:19 pm pause to take out the trash, 8:39 resume, .. lost train thought, omit sentence.]

Price is in harmony with count 4, in that it adopts the Mickeljon theory of free speech; that we protect speech in part because speech informs elections, and free and equal elections are preservative of all other rights. Yick Wo v Hopkins.

This court should follow Price, and find that plaintiff’s signs are political speech given heightened protection under section 9, apply strict scrutiny, and find that the statute and the county’s policy are unconstitutional restrictions on plaintiff’s section 9 rights, both facially and as applied to them.

Analogous federal cases are not controlling as to the in diana constitution, but they are persuasive.

This is not one of those cases where plaintiff has a losing federal claim but hopes to eke out victory under a slightly different state clause. Here the statute equally violates both constitutions.

Beginning with Barnette, the Supreme Court has repeatedly ruled that the government may not compel speech. If the American public known anything about their constitutional rights, it is that they have the right to remain silent. Miranda. The first case to apply this principle to disclaimers on political signs was Talley v California in 1960. Talley has been upheld repeatedly, in McIntyre and  ACLF. Talley is a subset of the court’s compelled speech cases, which include Tornillo, Riley, Wooley, Watchtower, NAACP v Alabama, Bates v Little Rock, Janus v Municipal Workers, NIFLA v Becerra, and most recently 303 Creative v Elennis.

A number of states have found that anonymous speech is also protected under their state constitutions. I have found 20 cases in 13 states that upheld the free speech right.

These cases include AZ, CA, CO, DE, FL, ID, IL, IN, LA, MO, ND, NY, and [OH], at least 13 states.  

[reorder by date or alphabetical]

1 Commonwealth v Dennis, 368 Mass. 92, 329 N.E.2d 706 (1974),

2 Doe v. Mortham, 708 So.2d 929 (Fla.1998)

3 Ex Parte Harrison, 110 S.W. 709 (Mo 1908),

4 Idaho v. Barney, 448 P.2d 195 (1968),

5 Illinois v White, 506 NE2d 1284 (Ill. 1987),

6 In re Opinion of the Justices, 324 A.2d 211 (Del. 1974),

7 Louisiana. v. Moses, 655 So. 2d 779 (La. Ct. App. 1995),

8 Louisiana v. Fulton, 337 So.2d 866 (La. 1976),

9 New York v. Duryea, 351 NYS2d 978 (1974),

10 Opinion of the Justices, 306 A.2d 18 (Maine 1973),

11 Schuster v. Imperial County Mun. Ct., 167 Cal. Rptr. 447 (Cal. Ct. App. 1980), cert. denied, 450 U.S. 1042,

12 State of Louisiana v. Burgess, 543 So.2d 1332 (1989),

13 State v. N. Dakota Ed. Assoc., 262 N.W.2d 731 (N.D. 1978),

14 Tattered Cover (CO),

15 Washington ex rel. Public Disclosure v. 119 Vote No!, 957 P.2d 691 1998), [did this case address state claims?]

16 Peter Zenger’s case, http://www.law.umkc.edu/faculty/projects/Ftrials/zenger/zenger.html (1735)

Oregon Attorney General Opinion 8266.

17. In re Ind. Newspapers, Inc., No. 49A02-1103-PL-23, ___ N.E.2d ___ (Ind. Ct. App., Feb. 21, 2012).

18. Digital Music News LLC v. Superior Court (Cal. Ct. App. May 14, 2014) (California constitutional right to privacy).

[19. Ohio, a lockstep state, considers McIntyre v Ohio Elections Commission as determinative of the state constitutional issue.]

20. Brush and Nib v Phoenix, (AZ 2019)

On the other side of the ledger, State v Acey in Tennessee and Peterslie v N Carolina declined to follow Talley. These cases are neither controlling nor persuasive.

Additionally, I have found some 50 cases that found either that disclaimer rules are unconstitutional, or that the constitution protects anonymous speech, Table II. These two lists overlap.

1 ACLU v Heller, 378 F3d 979 (9th Cir. 2004),

2 American Civil Liberties Union of Ga. v. Miller, 977 F.Supp. 1228 (N.D. Ga. 1997),

3 Anonymous v. Delaware, 2000 Del. Ch. Lexis 84 (2000),

4 Broward Coalition v Browning, 2008 WL 4791004 (N.D. Fl 2008),

5 City of Bogalusa v. May, 212 So.2d 408 (La. 1968),

6 Commonwealth v Dennis, 368 Mass. 92, 329 N.E.2d 706 (1974),

7 Cyberspace v Engler, (E.D.MI 2001)

8 Doe v 2theMart, 140 F.Supp.2d 1088, 29 Media L. Rep. 1970 (2001),

9 Doe v. Mortham, 708 So.2d 929 (Fla.1998)

10 Ex Parte Harrison, 110 S.W. 709 (Mo 1908), 11 Griset v. Fair Political Practices Commission, 69 Cal. App. 4th 818, 82 Cal. Rptr.2d 25 (1999), reversed on other grounds,

11.5. [Hansen v. Westerville City Sch. Dist., Nos. 93-3231, 93-3303, 1994 WL 622153 (6th Cir. Nov. 7, 1994), unpublished opinion, cert. denied 115 S. Ct. 2611 (1995). [facts behind mcintyre case.]

http://bulk.resource.org/courts.gov/c/F3/43/43.F3d.1472.93-3303.93-3231.html, ]

12 Idaho v. Barney, 448 P.2d 195 (1968), 14, 23 13 Illinois v White, 506 NE2d 1284 (Ill. 1987),

14 In re Opinion of the Justices, 324 A.2d 211 (Del. 1974),

15 Louisiana. v. Moses, 655 So. 2d 779 (La. Ct. App. 1995),

16 Louisiana v. Fulton, 337 So.2d 866 (La. 1976),

17 Michael James Berger, aka Magic Mike v. City of Seattle, (9th Cir. 6/24/2009) ,

18 Mulholland v. Marion County Election Bd. (S.D. Ind __)

19 New York v. Duryea, 351 NYS2d 978 (1974), 20 Ogden v. Marendt, 264 F.Supp. 2d 785 (S.D. Ind. 2003) (S.D. Ind 2004),

21 Opinion of the Justices, 306 A.2d 18 (Maine 1973),

22 People v Drake, (Cal.),

23 People v. Bongiorni, 205 Cal. App. 2d Supp. 856 (Sup. Ct. 1962), 13

24 Printing Industries of the Gulf Coast v. Hill, 382 F.Supp. 8011 (S.D.Tx 1974), 42 L.Ed.26 33 dismissed as moot.

25 Rosen v. Port of Portland, 641 F.2d 1243, 1246 (9th Cir.1981),

26 Schuster v. Imperial County Mun. Ct., 167 Cal. Rptr. 447 (Cal. Ct. App. 1980), cert. denied, 450 U.S. 1042, 14, 23

27 ShrinkMO v. Maupin, 892 F. Supp. 1246 (E.D. Mo. 1995), aff'd, 71 F.3d 1422,

28 Smithers v Fla. Elections, http://www.fec.state.fl.us/decisions/Smithers96-85.PDF,

29 State of Louisiana v. Burgess, 543 So.2d 1332 (1989),

30 State v. N. Dakota Ed. Assoc., 262 N.W.2d 731 (N.D. 1978),

31 Stewart v Taylor, 953 F.Supp.1047 (S.D.Ind.1997),

32 Tattered Cover (CO),

33 Texas v. John Doe, 61 S.W.3d 99, (Tx.App. 2001)

34 Town of Lantana v Pelczynski, 290 So. 2d 566 (Fla. App. 1974),

35 Vermont Right to Life v. Sorrell, 221 F.3d 376, 392 (2d Cir. 2000),

36 Virginia Society for Human Life Inc. v. Caldwell, 152 F3d 268 (4th Cir. 1998),

37 Washington ex rel. Public Disclosure v. 119 Vote No!, 957 P.2d 691 1998),

38 West Virginians for Life v Smith, 919 F. Supp 954 (S.D.W.Va. 1996), 960 F Supp 1036 (1996), 39 Wilson v Stocker, 819 F.2d 943, (10th Cir. 1999),

40 Yes to Life PAC v. Webster, http://www.med.uscourts.gov/opinions/Hornby/2000/DBH_02072000_2-99cv318_YES_PAC_V_WEBSTER.pdf ,

41 Peter Zenger’s case, http://www.law.umkc.edu/faculty/projects/Ftrials/zenger/zenger.html

42 Zwickler v. Koota, 290 F. Supp. 244 (E. D. N. Y. 1968), vacated on mootness grounds sub nom. Golden v. Zwickler, 394 U.S. 103 (1969),

Oregon Attorney General Opinion 8266.

Citizens for Responsible Gov't State PAC v. Davidson, 236 F.3d 1174, (10th Cir. 2000)

43. In re Ind. Newspapers, Inc., No. 49A02-1103-PL-23, ___ N.E.2d ___ (Ind. Ct. App., Feb. 21, 2012).

44. Dendrite

45. Doe v Cahill (Del.)

46. Digital Music News LLC v. Superior Court (Cal. Ct. App. May 14, 2014) (California constitutional right to privacy).

47. In re Anonymous Online Speakers, 661 F.3d 1168, 1173 (9th Cir. 2011)

48. Hartman v O'Connor 1:20cv163 (S.D. Ohio Sep. 29, 2021)(judicial speech withstood strict scrutiny)

49. Minn. Citizens Concerned for Life, Inc. v. Kelley, 291 F.Supp.2d 1052, 1069 (D.Minn. 2003), aff'd in part, rev'd in part, 427 F.3d 1106 (8th Cir. 2005).

50. Riley v. Jankowski, 713 N.W.2d 379 (Minn. Ct. App. 2006)

The Indiana constitution protects speech such as “Vote for Smith”, whether under the plain text of either clause of section 9, article I when read as a whole, and article II, or under Indiana case law.

Analogous federal cases compel the same result. 13 other states agree. This court should enter a declaratory judgment that IC 3-9-3-2.5 is void under the state constitution.

Respectfully submitted, Robbin Stewart.

End first draft 9:18 pm 9/6/23. Hours spent: 1.3._. Hours today about 7.3._.

Next up x shop then x internet. Took out trash, swept stairs, got ready for cable guy tomorrow.

=

Notes on in re Indiana newspapers. 10:07 pm 8/6/23 at library downtown.

https://caseclips.courts.in.gov/2012/02/23/indiana-newspapers/

In order to analyze this issue of first impression in our state, we consider …the First Amendment, which has a celebrated history of vigorously protecting anonymous speech, and the Indiana Constitution, which more jealously protects freedom of speech guarantees than the United States Constitution.

Anonymous speech has played an important role in the history of this country. “Under our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy or of dissent.” McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 356 (1995). This First Amendment protection has been extended to material on the internet as well. Reno v. Am. Civil Liberties Union, 521 U.S. 844, 870 (1997) (“[O]ur cases provide no basis for qualifying the level of First Amendment scrutiny that should be applied to [the internet].”).